Leopold v. Epstein (54 A.D. 133, 1900)

Jenks, J.:

This action is against sureties on an undertaking of a defendant on' liei* appeal to the Court of Appeals in a suit to foreclose a mortgage. The result of her appeal was affirmance with judgment absolute on her stipulation. The sale under the judgment showed a deficiency. The contention of the defendant • sureties is mainly based on' the facts that the judgment in the foreclosure suit first directed that the costs should be paid from the proceeds of sale, and ■ that the sale produced a sum sufficient to pay the costs. The material part of the judgment in foreclosure, as first entered,'provided that out of the proceeds of sale the sheriff should “ pay the expenses of- the sale as .provided in section 1676 aforesaid {i. e., the Code of Civil Procedure), and that the said sheriff pay to the plaintiff or his attorney the sum of $402.20, adjudged to the plaintiff for costs and disbursements in this action, with interest thereon from the date hereof, together with an additional allowance of $30.35,- and also the said amount so reported due as aforesaid,” etc. The language of the judgment does not, in express terms, direct an application, and, therefore, the contention of the appellants is based upon the order of the clauses in the provision quoted. I think that we are not required to construe this provision as a direction by the court of an application of payments utterly at variance with the principles governing the foreclosure of mortgages and the plain requirements of the statute regulating the costs of such an appeal. The foreclosure suit was brought to enforce the lien of the mortgage, and